By Venkatesh Nayak
The latest Economic Survey (ES) revives a 20-year-old idea of amending the RTI Act to keep file notings, records of internal deliberations and draft papers out of the citizenry’s reach. The UPA Govt had crafted an amendment proposal along similar lines in 2006 but could not muster enough support to table it in Parliament.
The NDA, particularly the BJP, was most vocal in opposing the move along with civil society. It is strange that they have revived the idea now without producing a shred of evidence as to how many times draft papers and internal deliberations have been disclosed and what detriment such openness has caused to the government’s interests.
The idea of ministerial veto over disclosure is also not a new one. Several Commonwealth countries like the UK, Australia, New Zealand and even Scotland have such provisions in their freedom of information laws. But have been used rarely and even when used, they are subject to strict judicial review. The most famous case of judicial correction of the abuse of veto power is the eventual disclosure of the correspondence between the then Prince of Wales, now King Charles III, and government departments.
The Supreme Court of England and Wales overruled the veto, holding that ministers cannot overrule an FoI appellate Tribunal’s decision simply because they do not agree with it. The ES is silent about when the ministerial veto will be applied- before the Information Commission decides an appeal or after a decision of disclosure is issued by the Commission. This idea of ministerial veto runs counter to the very grain of the people’s right to know, as explained by Justice P N Bhagwati in the S P Gupta vs President of India Constitution Bench case in 1983 (also known as the first judges case).
Justice Bhagwati said that protecting cabinet records and other official papers which contain internal deliberations within government, on the ground that it will promote candour and frankness among bureaucrats as they will not fear public disclosure of their views, is no longer sustainable in the 20th century. Disclosure cannot be withheld on the ground that it may embarrass the government or the head of the department, as that is not a public interest argument.
Crown privilege, which protected such interests until the 20th century, has been replaced by the much stronger test of public interest immunity. Will the disclosure of records harm a legitimate public interest or not is the current test. This is exactly how the RTI Act, especially Section 8(1) and the public interest override in Section 8(2), have been crafted. Will disclosure harm any of the protected interests in the ten exemption clauses or not is the test. And even if they do, the Information Commission can direct disclosure of even exempt information in the larger public interest.
The ES does not account for these recent developments, instead it seeks public debate on ideas and practices that have long been discarded or are rarely used now. The government, almost always being an interested party in a matter of information access dispute, cannot decide what is or not in the public interest independently like the judiciary or an autonomous Information Commission.
To float such ideas and to end that Chapter and the entire ES with a reference to the Late Mark Tully’s 9th Palkhivala Memorial Lecture whose title says “India…must move from a Ruler’s Raj to a very Citizen’s Raj” is a stark irony. This is just the last on the list of examples of contradictory ideas that pepper the ES which calls for the transformation of our welfare state into an entrepreneurial state where citizens are reduced to the status consumers of public services from being equal stakeholders in the world’s largest democracy.
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The DPDP Act amended the RTI Act in a retrograde manner by removing the parity between the citizenry and their elected representatives like MPs and MLAs/MLCs, in terms of information access. Now the ES seeks to initiate debate on more regressive measures that will curtail the contours of the transparency regime further. Strangely, the Chief Economist who authored the ES seeks to look upon the citizenry as the adversary of the State rather than the very reason and purpose for the latter’s continued existence.
(The author is the Director of the Commonwealth Human Rights Initiative, New Delhi)
